Citation: Natkunarajah v. Motor Vehicle Accident Claims Fund (MVACF), 2025 ONLAT 24-015650/AABS

Licence Appeal Tribunal File Number: 24-015650/AABS

In the matter of an application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8, in relation to statutory accident benefits.

Between:

Richard Natkunarajah

Applicant

and

Motor Vehicle Accident Claims Fund (MVACF)

Respondent

DECISION

ADJUDICATOR:

Sam Moini

APPEARANCES:

For the Applicant:

Ryan O'Connor, Counsel

For the Respondent:

Darrell March, Counsel

Heard by Videoconference:

September 22 and 23 of 2025

OVERVIEW

1Richard Natkunarajah, the applicant, was involved in an automobile accident on March 1, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, MVACF, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The applicant withdrew all substantive issues through a motion that was recognized by the Tribunal on September 15, 2025, leaving only the preliminary issue in dispute. The respondent requested costs at the hearing. In accordance with Rule 19, the issue of costs is added to this hearing.

ISSUES

3The issues in dispute are:

(i) Is the applicant barred from proceeding to a hearing for all of the benefits claimed in this application because as per section 31(1)(a)(i) of the Schedule the insurer is not required to pay income replacement benefit under section 21, 22 or 23 in respect of a person who was the driver of an automobile at the time of the accident, if the driver knew or ought reasonably to have known that he or she was operating the automobile while it was not insured under a motor vehicle liability policy?

(ii) Is the respondent entitled to costs of $1,500.00 pursuant to Rule 19 of the Licence Appeal Tribunal Rules, 2023 (“Rules”)?

RESULT

4The Tribunal does not have jurisdiction to proceed as the preliminary issue being raised does not relate to an underlying benefit in dispute.

5The respondent is not entitled to costs.

ANALYSIS

The Tribunal does not have jurisdiction over the preliminary issue.

6I find that the Tribunal does not have jurisdiction to proceed on the preliminary issue of sec 31(1)(a)(i) of the Schedule.

7Section 31(1)(a)(i) of the Schedule states,

(1) The insurer is not required to pay an income replacement benefit, a non-earner benefit or a benefit under section 21, 22 or 23,

(a) in respect of a person who was the driver of an automobile at the time of the accident,

(i) if the driver knew or ought reasonably to have known that he or she was operating the automobile while it was not insured under a motor vehicle liability policy.

8The respondent submits that it is procedurally unfair for the applicant to withdraw the substantive issues, and for the hearing to proceed on the preliminary issue alone. The respondent submitted that the preliminary issue cannot proceed, given that the applicant has withdrawn the benefits claimed in the application and the preliminary issue is moot. The respondent also relied on Wereszczynska v Aviva Insurance Company, 2023 CanLII 107278 (ON LAT), where the application was dismissed because the Adjudicator ruled the application was outside the jurisdiction of the Tribunal to rule on stand alone issues of interest and an award when the treatment plans giving rise to the claims are not in dispute.

9The applicant submitted that the Tribunal does have jurisdiction to hear the preliminary issue as a stand-alone issue. The applicant relied on the following case law, Anderson v Economical Insurance, 2024 CanLII 18076 (ON LAT), Batoor v State Farm Mutual, 2016 CarswellOnt 4908, Vaillancourt v Intact Insurance Company, 2021 CanLII 104550 (ON LAT), Nwakwesi v. Security National Insurance Co., 2001 CarswellOnt 5082. The applicant argues that the Tribunal has heard and decided on preliminary issues as stand-alone issue. In the case of Anderson v Economical, it was argued that though the substantive issues were withdrawn, the application continued, on the preliminary issue alone. The preliminary issue being decided in that case was, whether the applicant was involved in an “accident” as defined in section 3(1) of the Schedule.

10As set out above, section 31(1) provides that the insurer is not required to pay an income replacement benefit, a non-earner benefit or a benefit under section 21, 22 or 23 if the driver knew or ought reasonably to have known that he or she was operating the automobile while it was not insured under a motor vehicle liability policy. In this case, the applicant withdrew all substantive issues, which included entitlement to an income replacement benefit.

11In my view, the preliminary issue relates to the question of the underlying benefit. As the underlying benefit has been withdrawn there is no preliminary issue to be heard. Decisions of the Tribunal are not binding on me, and in any event, I find that Anderson v Economical is distinguishable. The preliminary issue in that case was not the same as in the case before me. The question in that case was whether the applicant was involved in an “accident” as defined in section 3(1) of the Schedule which is not tied to a specific benefit. Similarly, the cases of Batoor v State Farm Mutual, Vaillancourt v. Intact Insurance Company, and Louis Nwakwesi v Security National Insurance Company also states that the applicant in each of those cases can proceed with their disputes of income replacement benefits; non-earner benefits or a benefit under sec 31(1), which is not in dispute in this application. More specifically, in the case of Vaillancourt v. Intact Insurance Company, in paragraph 63 of the decision, Adjudicator Monica Chakravarti, states, “…the applicant may procced with his disputes before the Tribunal.”. All these cases can continue with their dispute, however there is no dispute before the Tribunal in this application.

12As there is no underlying benefit in dispute because it was withdrawn by the applicant, I find that the Tribunal does not have jurisdiction to proceed on the preliminary issue related to sec 31(1)(a)(i) of the Schedule.

Costs

13The respondent is not entitled to costs.

14Rule 19.5 provides that in considering whether to order costs and the amount to be ordered, the Tribunal shall consider all relevant factors including the seriousness of the misconduct, whether the conduct was in breach or a direction or order issued by the Tribunal, whether or not a party’s behaviour interfered with the Tribunal’s ability to carry out a fair, efficient and effective process; prejudice to the other parties; and the potential impact an order for costs would have on individuals access the Tribunal system.

15The respondent argued that the applicant acted unreasonably, frivolously, vexatiously, and in bad faith by withdrawing the substantive issues approximately a week before the hearing. The respondent argues the applicant did not follow any of the deadlines set out in the Case Conference Report and Order (CCRO) while the respondent met all deadlines. The respondent also relied on the case, Emmanuel v TD General Insurance Company, 2025 CanLII 122001 (ON LAT), where costs were granted. The respondent argues the applicant’s action was an abuse of process and requested the cost of $1,000.00 per day be paid for 1.5 days totalling $1,500.00.

16The applicant submitted they did not act unreasonably, frivolously, vexatiously, and in bad faith. The applicant submitted it was reasonable for them to proceed with the hearing and were prepared to do so.

17I find that the respondent has not established grounds for costs. In the Motion Order dated September 15, 2025, the Tribunal acknowledged that all substantive issues were withdrawn by the applicant. The Tribunal also noted that an order is not required for a party to withdraw an issue in dispute. The applicant may withdraw issues before a hearing is concluded. Withdrawing an issue is not grounds for costs.

18For costs to be awarded, there must be a course of conduct that frustrates the Tribunal’s ability to carry out a fair and efficient hearing. Costs are to maintain civility and order during proceedings and to deter conduct that threatens the orderly and civil resolution of the application. Costs are not intended to compensate parties for the cost of bringing or defending claims or to punish a party.

19In this case, the respondent argued the Tribunal lacked jurisdiction. The applicant disagreed. While I have now found in favour of the respondent, this does not mean that the applicant’s actions interfered with the Tribunal’s ability to carry out a fair and efficient hearing, was in violation of a Tribunal order, or that the applicant acted unreasonably, frivolously or vexatiously.

20While not binding on me, I note that Emmanuel v. TD General Insurance Company involved different circumstances than in the current proceeding. In that case, the Tribunal found that the applicant has acted in an unreasonable manner because she did not make reasonable efforts to ensure the attendance of her expert witnesses and also because she unnecessarily expended hearing time before withdrawing the application. In this case, the applicant was prepared to proceed on the preliminary issue however as stated in this decision, I found the Tribunal did not have jurisdiction to proceed.

21Therefore, I find the applicant did not act unreasonably, frivolously, vexatiously, or in bad faith. The respondent is not entitled to costs.

CONCLUSION & ORDER

22The Tribunal does not have jurisdiction to proceed with the preliminary issue in dispute.

23The respondent is not entitled to costs.